Recent Defense Victory For Two Clausen Miller New York Attorneys
January 29, 2010
Workers' Compensation Victory
Plaintiff suffered personal injuries while on the job, and he and his wife filed suit against the alleged tortfeasors. He also sought workers' compensation benefits from his employer's workers' compensation carrier, Clausen Miller's (CM) client. While the workers' compensation hearings were still on-going (no decision was made by the Workers' Compensation Board as to Plaintiff's classification), Plaintiff and his wife jointly settled the civil litigation. Due to Plaintiff's personal issues, he needed payment from Defendants within weeks. Defendants were willing to make the payment, but only if CM's client fully approved the settlement. Plaintiff then filed and served an Order to Show Cause against CM's client.
Partner Robert A. Stern (New York and New Jersey) and associate Virginia M. Markovich (New York) were retained by CM's client to address the Order to Show Cause. Plaintiff sought an Order: (1) permitting him to settle the civil litigation for $2.8 million; (2) affixing CM's client's equitable share of litigation costs at 34.21%; (3) requiring CM's client to pay 34.21% of all future medical costs incurred and future indemnity benefits; and (4) apportioning $280,000.00 to Plaintiff's wife for her derivative claim. After reviewing the facts and law, they determined that Plaintiff's request was improper. As they were beginning to prepare the opposition, they received amended papers from Plaintiff. Now, Plaintiff sought an Order: (1) permitting him to settle the civil action for $2.8 million; (2) affixing CM's client's equitable share of litigation costs at 34.29%; (3) requiring CM's client to pay Plaintiff, on a monthly basis, 34.29% of all future medical costs; (4) requiring CM's client to pay Plaintiff, on a monthly basis, 34.29% of all future indemnity benefits; and (5) apportioning $280,000.00 to Plaintiff's wife for her derivative claim.
From their perspective, this new requested relief was even more offensive than the original Petition. They advised their Client that: (1) the $2.8 million settlement was reasonable, but only $2.52 million should be attributed to Plaintiff; (2) the equitable share of litigation costs was 34.27%; and (3) it should only pay 34.27% of the medical and indemnity benefits that the Workers' Compensation Board determines Plaintiff is entitled to until their client's credit is exhausted, and it maintains the right at any time to contest/appeal the workers' compensation submissions. Although they attempted to explain their position to Plaintiff's counsel, he did not want to listen.
At oral argument of the Order to Show Cause, Ms. Markovich explained their position. At the end of the Hearing, the Judge instructed Plaintiff's counsel to prepare a draft Order and submit it to them for their review. The Judge further stated that if they do not concur in the draft Order, they should submit a proposed draft Order. They received the draft Order, did not concur and then submitted our proposed draft Order. The Judge Ordered another Hearing.
At this second Hearing, which Ms. Markovich attended, the Judge did not take any oral argument. Rather, the Judge stated that he found the subject of workers' compensation benefits "confusing" and sought input from five (5) other judges. He then asked a few questions of Plaintiff's counsel. Then, the Judge handed all counsel a copy of a draft Order which he prepared.
When Mr. Stern was presented with a copy of the Judge's draft Order, he immediately had concerns that: (1) the Judge still did not understand the law; (2) there was judicial error in the Order; and (3) the Order could be used by Plaintiff's counsel (and all future workers' compensation claimants) to the determinant of CM's client (and other workers' compensation carriers). Both Stern and Markovich contacted Plaintiff's counsel to attempt to address Mr. Stern's concern; again, Plaintiff's counsel did not want to listen. Mr. Stern then prepared two (2) letters for the Court and all interested parties (Plaintiff and the civil Defendants) explaining his position and advising that if the proposed Order is finalized as drafted, an appeal will be taken and no payments will be forthcoming until the appeal is decided. As a result of these letters, the Court Ordered a third Hearing. The Judge was very disturbed because (a) he thought he "got it right" with his proposed draft Order, and (b) really wanted Plaintiff to get his settlement funds within days.
Mr. Stern represented CM's client at the third Hearing. Also in attendance were CM's client's Staff Counsel, CM's client's workers' compensation counsel, the Insurance Fund's counsel, Plaintiff's counsel and Defendants' counsel. The Judge started the day off with a question: "who is hear for the a** whipping." Mr. Stern advised the Judge that he was attending to address the issues.
After a heated professional discussion between the Judge and Mr. Stern, the Judge advised all counsel that he already typed a six (6) page Decision. After reviewing the Decision, Mr. Stern convinced the Judge to change the Decision to include the exact language requested by Mr. Stern. As a result of the final Decision containing the exact language sought by Mr. Stern, not only was CM's client protected from the Plaintiff, but all workers' compensation carriers were protected from claimants attempting to circumvent the Workers' Compensation Board.
If you would like to learn more about workers' compensation related claims, defending a case or aggressively and professionally asserting a position to a Judge that is adverse to your position, please feel free to contact Robert A. Stern (rstern@clausen.com) or Virginia M. Markovich (vmarkovich@clausen.com), or call them at 212/805-3900.
